During jury selection for trial, attorneys for the defendant and the plaintiff can use peremptory challenges to dismiss jurors without providing a reason. In Washington, that process now includes a step that the American Civil Liberties Union of Washington (ACLU-WA) says makes it the “first court in the nation to adopt a court rule aimed at eliminating both implicit and intentional racial bias in jury selection.”

General Rule 37 on jury selection is meant to “eliminate the unfair exclusion of potential jurors based on race or ethnicity.” It allows attorneys to call out their counterparts if they feel they are using improper bias in dismissing potential jurors, and turns the decision over to the sitting judge to determine if “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.”

The court can deny the dismissal of the juror if it finds either purposeful discrimination or implicit bias; for the purposes of the decision, the “objective observer” “is aware that implicit, institutional and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington state.” The court can also object to attempted dismissals. The rule will apply to all jury trials—criminal and civil—in the state starting at the end of April, according to a statement issued by ACLU-WA.

The first draft of the rule was created by ACLU attorneys several years ago, and they are happy to see it take effect.

“The court has recognized that the fair and impartial administration of justice requires changing the conversation about racial and ethnic bias in our courtrooms. It has expressly acknowledged the insidious role of implicit and structural bias, and reasons previously considered as acceptable for excluding a juror will now be rejected for their association with bias,” ACLU-WA senior staff attorney Nancy Talner, who helped draft the rule, said in a statement. “This groundbreaking rule for jury selection will reduce the damage done by racial and ethnic bias to the integrity of our judicial system and to communities of color.”

I saw this the other day. I was pretty surprised to see a state Supreme Court effectively codify stereotypes of minorities as (1) being persons who’ve had prior contact with law enforcement; (2) expressing distrust in law enforcement; (3) having close personal relationships with convicts; (4) live in high crime neighborhoods; (5) having children out of wedlock; and (6) receiving welfare.

But they apply to civil cases as well, and those pre-texual reasons are often sound. Listing reasons only makes the process murkier. But the process is saved by the sort-of definition of an “objective observer,” which is really an observer that assumes the strike is used in a discriminatory manner.

I have a lot of issues with this, but it’s Friday. Well, maybe just one more: people that don’t speak English as a primary language are on the verboten list. From the plain reading, that includes those those that don’t understand English very well. I run into that in every trial.

But that’s like saying employers are prohibited from offering poor work product as a legitimate non-discriminatory basis for firing in an employment discrimination case. Sure, it’s sometimes pretextual, but it doesn’t make incompetence itself a discriminatory basis for firing (I’ll give you five and six above as not constitutiting a legitimate reason).

And to be candid, I’m not a big believer in Batson other than when employed against prosecutors/state actors. I believe my duties to my client to give them the best chance they can is more important than the civil rights of jury member based on historic exclusion from the political process. The jurors aren’t the ones going to jail or paying the judgment

It has long been my view that any half-competent lawyer could manufacture a race-neutral excuse for striking any juror, with the proviso they didn’t put something facially obvious on their notes, making Batson challenges more honored in the breach.

This seems to provide the latitude to call bullshit when everybody knows it’s bullshit. The only weak link in the chain is the willingness of the judge to do the job. But then, that’s trial anyway.

Can you read minds? What am I thinking right now? Either that or you aren’t conscious of your own bias. How would you know you didn’t use your peremptory because the juror was black if you can’t even see how biased you are?

Sure, any good trial lawyer can twist a juror until he cries “uncle.” The problem is getting time to do it. I know nothing of the other federal courts, but in the three districts I practice, voir dire is so limited that I have to spend my complete time allotment pretzelizing just one.

If you can’t come up with the reason strike in 30 seconds, lay down your brief case. We get little time for voir dire here as well, but there’s always something out of the standard questions if noting else. Show some imagination, white man.

They don’t need to cry. Just say “I work at the mall,” and you strike because there are shoplifters at the mall, and that prejudices the juror because [insert your silly but otherwise neutral argument]. Easy peasy.

Scott H. Greenfield

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